Company Not Responsible for Harassive Comments by Coworker on Personal Facebook Page — Amira Jabbar v. Travel Services

[Post by Venkat]

Amira Jabbar v. Travel Services (D.P.R.; Sept. 10, 2010) (Order on reconsideration)

Plaintiff brought a hostile work environment claim against her employer. Plaintiff alleged, among other things, that the employer failed to properly investigate derogatory comments made on Facebook. Specifically, following a company event, another employee (or someone related to the other employee) uploaded photos of the event to a personal Facebook account. Plaintiff commented on the Facebook photo and said: “remind me that taking pictures in this shade is really a dis-service to my wonderful chocolate skin.” In response, another employee (who also happened to be a defendant) responded by stating: “That is why you always have to smile!!!” Plaintiff pointed to this comment along with other evidence in support of her hostile workplace claim.

The court rejects plaintiff’s claims on summary judgment. With respect to the Facebook comment, the court finds that there was no evidence that the account to which the photo was uploaded was a company account. The court also did not credit plaintiff’s testimony that the company had a policy in place that encouraged employees to upload photos of company events to their Facebook pages. In any event, the court rules that the company took appropriate corrective action:

As to the Facebook incident, [the company] asked its IT contractor to block access to [Facebook] for all office computers.

Yikes!

It’s tough to read too much into this opinion, and it doesn’t in practical terms answer the burning question of what sorts of things (if anything) related to Facebook and other networks belong in a company’s social media policy. But the court seemed to rely on the fact that the Facebook account was the personal account of an employee (or a friend) and not an official company account. If the comment was made on the company’s official Facebook page, would it have mattered? Would it have made a difference if the commenter was in a supervisory position vis a vis plaintiff? I’ll leave it to the employment law experts to answer these questions, but I’m guessing at a minimum, the company has an obligation to take prompt corrective action and have in place a policy in the first place that employees shouldn’t make problematic comments on company pages or accounts.

One takeaway from these cases is that if you have official company accounts, it makes sense to designate the person(s) who can “officially” post to these accounts and designate what accounts are official accounts. It probably would not hurt to have someone keep tabs on the account to monitor inappropriate comments and to give any authorized posters a crash course in what types of statements courts consider to be problematic or could get the company in hot water.

[The corrective action undertaken by the company is overly drastic, although it was endorsed by the court. No more access to Facebook from company computers! What are the employees supposed to do all day?]

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